Police practices substantiate legal abstractions, but frequently the police are influenced by normative frameworks beyond the framework of the civil laws that regulate their work.This chapter examines the interrelationship between Jordan’s tradition of legal pluralism and the hegemonic values that influence different kinds of social order. It also considers how the civil legal system takes account of tribal settlements with respect to the ‘personal right’ accorded to victims, and reviews how the blend of customary, formalised tribal, Islamic and civil legal traditions that co-exist in Jordan shape the field of practice within which the police manage grievances. Frequently exercising discretion, the police treat some of these grievances as crimes, and others as disputes between citizens, reflecting the common reticence of citizens to prosecute cases in the civil courts.

This chapter examines the state of the use of multi-tiered approaches to the resolution of disputes related to Korea, particularly from a cross-border context. Unlike in other jurisdictions in Asia, multi-tiered clauses do not appear to be the preferred choice for dispute resolution for Korean parties. Med-arb, arb-med, or med-arb-med, where the combination of mediation and arbitration are sequentially carried out, sometimes by the same person in some jurisdictions, still remain uncommon in Korea. This is consistent with the fact that, relative to non-adjudicative approaches to resolve disputes such as negotiation and mediation, the use of adjudicative approaches such as litigation or arbitration remain the preferred options. Mediation remains a relatively underdeveloped alternative dispute resolution method for both domestic and international disputes. This chapter explores state of the use of multi-tiered dispute resolution by providing an overview of dispute resolution in Korea.

This chapter provides a high-level comparative overview of how states around the world have regulated hybrid processes (med-arb or arb-med) involving the same neutral. Drawing on a database of national mediation and arbitration laws from 195 jurisdictions, it elicits broad regulatory patterns and seeks to determine whether they can be explained by reference to geographic region, legal tradition or a state’s level of development (measured by income level). The findings show that fewer than half of all jurisdictions surveyed legislate around same neutral hybrid processes. Of those that do, most are concentrated in Africa and Asia. Common law jurisdictions are less likely than civil law jurisdictions to regulate in this space, but when they do, they tend to be more thoughtful and innovative.

Although it is often said that combining mediation and arbitration using the same neutral is widely accepted in Continental European, Latin American, and Eastern Asian cultures, this is only somewhat borne out by national legislation. Assuming lawmaking mirrors culture, the study’s findings lend qualified support only to the idea that Eastern Asian cultures are receptive to same neutral arb-med.

This chapter traces the decline of the traditional jury across the criminal justice systems in Europe and argues the case for a hybrid jury to take its place. The chapter contrasts common-law and civil-law systems and considers why the jury has been a remarkably enduring institution across common-law systems but has been less successful in being transplanted onto continental European soil. The chapter also identifies certain pressures in common-law systems that have led to calls for the jury to be made more accountable. The chapter then argues that, against the background of a growing convergence between procedural systems, a case can be made for adopting a modern hybrid jury across Europe that retains the key feature of the traditional jury, namely that laypersons decide the verdict, but combines this with the need for the jury to provide some justification for its verdict.

This chapter provides a snapshot view of the different ways that 195 countries around the world use lay participation in legal decision-making. We collected information from a variety of sources, including new expert surveys, legal research, and existing empirical evidence, to determine which countries use lay citizens as legal decision-makers in criminal cases and how they use them. Approximately two-thirds of the world’s countries use some form of lay participation, and the most commonly used forms are juries and mixed tribunals. The use and form of lay participation vary by geography and by the legal tradition of the country. The majority of countries in Africa, Australia and Oceania, Europe, and North America use some form of lay participation in their legal systems. Countries with common-law or customary-law legal traditions are most likely to rely on lay citizens as legal decision-makers. The widespread use of lay participants around the globe underscores the importance of studying this phenomenon. This chapter provides a baseline against which future studies in lay participation can be measured.

This chapter examines the rise of the Argentine jury. Although promised in the 1853 National Constitution, the jury did not come to Argentina until the provinces took the lead in the twenty-first century. Responding to public distrust in the legal system, scholars and reformers saw the jury as a way to bring transparency, efficiency, and democratization to a judicial system rooted in the inquisitorial tradition. The chapter looks at the various choices each province has made in designing its jury trials and the distinctive features of equal gender representation and an indigenous jury introduced in Argentina. Although the reformers who advocated juries faced opposition, they overcame resistance, and appellate courts have rejected challenges to the new jury systems. Moreover, early research reveals positive reactions from the jurors, judges, and attorneys who have participated in jury trials in Neuquén and the province of Buenos Aires, and new provinces have been joining the move to implement jury systems. Other countries in Latin America have expressed interest in Argentina’s jury activities. Further developments will bear watching.

Developing the arguments of Chapter 1, this chapter examines the everyday experiences and policing of gambling in Italy during the fifteenth and sixteenth centuries. It traces shifting attitudes toward games of chance in both penitential thought and civil regulation. It argues that civil law attitudes toward gambling were structured by the notions of honor and social status held by the homosocial office-holding classes of Italian cities. While these governors understood themselves to possess the requisite social and financial capital to gamble, they continually attempted to restrict the ability of women, younger men, and lower socioeconomic estates to play at games of chance. The chapter also uses artworks and criminal prosecutions to trace resistance to this attitude by the excluded, revealing that the notions of honor, character, and self-control that pervaded elite ideas about gambling penetrated deeply in Italian society, although manifesting in different ways. In both cases, attitudes rested on ideas about what it meant to take chances on the unknowability of the future.

This introduction is designed to give readers an overview of or a refresher on the basics of Australia’s legal system. While many readers will be familiar with these basics, others might not be so this material has been included to inform the specific discussion of law that follows in this book’s substantive chapters.

In this chapter the topic of the interaction between Roman law and Hellenistic philosophy in the late Republican era is introduced, with reference to earlier treatments in modern scholarship. Furthermore, preliminary issues are brought up, such as the problem of the sources, the characterisations of law and philosophy as practices – law as a practice of dispute resolution and philosophy as practiced within schools or haereseis with different outlooks -, and the role of rhetoric in the interaction.

This volume is a selection of essays taken from the excellent range of papers presented at the British Legal History Conference hosted by the Institute for Legal and Constitutional Research at the University of St Andrews, 10–13 July 2019. The theme of the conference gives this book its title: ‘comparative legal history’. The topic came easily to the organisers because of their association with the St Andrews-based European Research Council Advanced grant project ‘Civil law, common law, customary law: consonance, divergence and transformation in Western Europe from the late eleventh to the thirteenth centuries’. But the chosen topic was also connected to the fact that this was, we think, the first British Legal History Conference held at a university without a Law faculty. Bearing in mind the question of how far institutional setting determines approach, our hope was that an element of fruitful comparison would stimulate people to think further about the range of approaches to legal history. With its explicit agenda of breaking down barriers, comparative legal history provided a particularly suitable focus for this investigation. After situating the subject matter of comparative legal history, and then discussing the levels of comparison that may be most fertile, this introduction moves on to considering the practical tasks of researching and writing such history, using the essays included in the volume to suggest ways ahead. The introduction groups the essays under certain headings: ‘Exploring legal transplants’; ‘Investigating broader geographical areas’; ‘Case law, precedent and relationships between legal systems’; and ‘Exploring past comparativists and the challenges of writing comparative legal history’. Yet the essays could be kaleidoscopically rearranged under many headings. We hope that the book, like a successful conference, includes many stimulating conversations.

Chapter 4 addresses the justifications for which specific performance is a remedy of international law before the Court. It focuses on the controversial issues regarding this remedy, which range from determining the power of the Court to order it, to analysing the effects of its relationship with other remedies, such as restitution in kind or declaratory judgments. The differences of opinion expressed by commentators regarding its availability before the International Court of Justice originate from a series of misunderstandings that gravitate around the effects of qualifying this remedy as a form of injunctive relief. A consequence of this conceptual confusion influences the relationship and interaction between specific performance, declaratory judgments, cessation and restitution in kind and the main features of this remedy. Further, the interpretation and application of specific performance is also influenced by differences in terminology between scholars and practitioners originating from different legal systems.

This chapter explores Shakespeare’s knowledge and use of the European ius commune. The ius commune was the amalgam of Roman and canon law taught in Europe’s universities, including England’s, and employed as the basic source of law in European legal tribunals to the eighteenth century. It was applied in the courts of the English church, the Admiralty, the universities, and some of the courts of equity that had come to life in the sixteenth century. These courts were served by a separate legal profession, the English civilians. Recent interest in Shakespeare’s knowledge and use of law takes virtually no notice of this aspect of English law. This chapter demonstrates a number of points. The first is that Shakespeare was familiar with the ius commune. He used its terminology and then made something of it in the dialogue of his plays. The second is that this knowledge had results in their thematic coverage. He employed his knowledge of the ius commune to shape and enrich the substance of the plays. The third is that his use of the civil and canon laws was connected with areas of contemporary controversy in England.

The Court of Chivalry enjoyed a high political profile, owing to the military nature of the suits and the high social status of its litigants. Within the context of long periods of warfare during the fourteenth and fifteenth centuries, the Court maintained its reputation on account of nobles and knights wishing to challenge the legitimacy of perceived rights to lucrative ransoms of prisoners or to bear heraldic coats of arms. The procedures employed were predominantly those of the continental ius commune rather than the common law, probably on account of the international body of customs and practices found in the 'law and custom of arms' which underpinned the legal principles applied in the Court. In addition to its eclectic jurisdiction, the networks and connections of the legal personnel helped shape its distinct identity. The Court formed a nexus where highly qualified men from other courts and administrative traditions pooled their considerable intellectual understanding and practical experience. They were often educated in civil and/or canon law, but were probably both respected and well-placed from their involvement in parliament and other diplomatic and judicial business to act as commissioners and advocates in the often highly charged political circumstances of Court of Chivalry cases.

The concept of equity is often assimilated with that of Aristotelian epieikeia, a process that corrects rules when their application to a certain case would be unjust or contrary to the intention of the legislator. In the middle ages - while theologians had written at length on the concept of epieikeia - glossators, commentators, and canonists adopted a concept of aequitas completely unrelated to it. This barrier between law and theology lasted throughout the medieval period. By the mid-sixteenth century the concept of epieikeia had become familiar to legal writers and, through the work of humanist jurists, was explicitly associated with aequitas. The introduction of epieikeia in legal scholarship opened the door to the influence of scholastic theology over the concept of equity, as lawyers and theologians worked together to build a novel concept of aequitas/epieikeia as judicial power to interpret law beyond its letter.